NSW Police Force v Newby

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		NSW Police Force v Newby [2009] NSWWCCPD 75
APPELLANT:		NSW Police Force
RESPONDENT:		Jason Newby
INSURER:		Allianz Workers Compensation (NSW) Ltd-Treasury Managed Funds
FILE NUMBER:		A1-8532/08
ARBITRATOR:	Mr R Foggo
DATE OF ARBITRATOR’S DECISION:		24 February 2009
DATE OF APPEAL DECISION:		7 July 2009
SUBJECT MATTER OF DECISION:		Adequacy of reasons; section 40 of the Workers Compensation Act 1987, ability to earn.
PRESIDENTIAL MEMBER:		President, His Hon. Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:		DLA Phillips Fox
Respondent:		Harris Wheeler Lawyers
ORDERS MADE ON APPEAL:		1.  The decision of the Arbitrator dated 24 February 2009 is revoked. The matter is remitted to a new arbitrator for determination of the worker’s ability to earn in suitable employment in accordance with the reasons given in this decision.
2.  The costs of the first arbitration and of the second arbitration are to follow the orders at the second arbitration.
3.  Each party pay his or its own costs of the appeal.

INTRODUCTION

1. The New South Wales Police Force (‘ the Police Force’) filed an ‘Application to Appeal Against Decision of Arbitrator’ (‘the Application’) on 23 March 2009.  The respondent to the appeal, Mr Newby, filed a ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ on 27 April 2009.

1. The Police Force appeals the Arbitrator’s determination of Mr Newby’s ability to earn in suitable employment, self employed mowing lawns because there was no factual basis for the conclusion reached, his reasons were inadequate and the decision was speculative and unsubstantiated. In the appeal proceedings the Police Force seeks to admit and rely on new evidence purporting to establish the correct earnings of a ‘Jim’s Mowing’ franchisee.

BACKGROUND

1. Mr Newby left school after completing year 10 and completed a 4½-year apprenticeship at Tubemakers.  He joined the Police Force commencing at the New South Wales Police Academy in Goulburn on 8 May 1988 and graduated on 29 July 1988. 

1. After serving as a police officer at various ranks and locations he was medically discharged from the Police Force on 7 February 2008.  Mr Newby suffered post-traumatic stress disorder (‘PTSD’) with major related depressive disorder as a result of the general nature and conditions of his employment including repeated exposure to numerous traumatic events.

1. Mr Newby made a claim for psychological injury with a deemed date of injury of May 2006. Voluntary payments of compensation were made until 23 July 2008, when, by notice given under section 54 of the Workers Compensation Act 1987 (‘the 1987 Act’), he was advised that further payments would discontinue six weeks from the date of the letter. The insurer for the Police Force alleged that he no longer suffered an incapacity for work and that he was able to earn equal to, or in excess of, the amount that he could earn in the Police Force or suitable employment.

1. By letter dated 22 August 2008, the Police Force gave notice under section…